Building the workforce of today and tomorrow means being able to hire, train and retain the employees who have the skills to get the job done no matter where they were born or where they are in the world. Whether it be for temporary employees from overseas, foreign graduates of local universities or globetrotting senior executives, employers need efficient, predictable and flexible immigration policies that enable effective talent management and global competition.

Immigration has historically been a difficult issue for nations to navigate, and that is no different today. Global headlines signal instability, unpredictability and tightening enforcement. Focal points in the United States include legislative gridlock, pending regulatory changes aimed at preventing fraud and abuse of visa programs, and a patchwork approach to employment verification. Worldwide, scrutiny of international labor recruitment and an ever-evolving landscape of policies make an employer's ability to manage global talent as uncertain as ever.

Employment-Based Immigration in the United States

It is widely acknowledged that the U.S. immigration system needs an overhaul. Demand for temporary H-1B visas far outstrips supply, leaving employers without options to hire the foreign-born graduates of America's top universities. Green card backlogs frustrate talented professionals who may have to wait a decade or more to settle permanently in the United States. Even fewer options exist for employers seeking to hire essential employees for agricultural and seasonal positions. With 74 percent of employers reporting that the ability to obtain visas in a timely, predictable and flexible manner is critical to their business objectives (Employer Immigration Metrics Survey, Council for Global Immigration, 2016), fixing the U.S. immigration system has never been more important. To compete, employers and their workforces need a fair, innovative and competitive immigration system.

Outlook:

President Donald Trump has vowed to make changes when it comes to immigration policy, including a focus on national security, interior enforcement and changes to our employment-based immigration system that prioritize the hiring of Americans.

On April 18, 2017, Trump signed the "Buy American and Hire American" (BAHA) executive order, instructing federal agencies to issue new immigration rules and guidance to protect the interests of U.S. employees, including prevention of fraud or abuse. BAHA also instructed agencies to recommend reforms to the H-1B program to ensure visas are awarded to the "most-skilled or highest-paid" beneficiaries.

This year, immigration changes are more likely to come from the federal agencies than Congress. The regulatory agenda includes elimination of work authorization for H-1B dependent spouses waiting in the green card backlogs, tightening of H-1B eligibility criteria and reforming the lottery, limitations on optional practical training for graduates of U.S. universities and restrictions to J-1 exchange visitor programs. In addition, NAFTA renegotiation or withdrawal could impact admissions and visas for people temporarily coming to the United States from Mexico or Canada.

On September 5, 2017 the Trump Administration announced that the Deferred Action for Childhood Arrivals (DACA) program would be phased out as of March 5, 2018. However, on January 8, 2018, a judge in the Northern District of California issued a nationwide temporary injunction requiring USCIS to continue to accept DACA renewal applications. Subsequently, on April 4, 2018, a judge in the District Court for the District of Columbia ordered the Department of Homeland Security to issue a new memorandum justifying the decision to end DACA, or the program would be reinstated entirely. DHS issued the new memorandum on June 22, 2018 and further District Court action is uncertain. In the meantime, a lawsuit filed by seven states in the Southern District of Texas seeks a determination that DACA is unlawful in its entirety. Hearings in that case will begin on July 17.

President Trump has called on Congress to find a solution for DACA before it turns to other immigration reforms for employment-based immigration. While attempts to find a legislative solution have failed in the Senate and House to date, discussions continue and may be propelled by court actions. Any final DACA deal may include elements of the President's DACA proposal such as border security funding, limits to family-sponsored immigration and elimination of the diversity visa lottery, reallocating green cards to clear backlogs. While SHRM and its affiliate, the Council for Global Immigration (CFGI), are hopeful for a solution, finding a bipartisan solution will be a challenge given the makeup of Congress and the slim Republican majority in the Senate.

Electronic Employment Verification and Worksite Enforcement

Effective worksite enforcement is central to immigration reform. While U.S. employers are committed to hiring only work-authorized individuals, today they are confronted with a patchwork of federal and state employment verification requirements that is confusing and can be defeated by workers presenting stolen identities. While all U.S. employers must complete a paper-based Form I-9 to establish an employee’s identity and authorization to work in the United States, some may also use E-Verify, the U.S. Citizen and Immigration Services’ electronic employment verification system. Although E-Verify is a voluntary federal program, several states have enacted laws requiring some or all employers to participate in the system. The federal government also requires participation of most federal contractors.

Outlook:

Immigration and Customs Enforcement has increased immigration enforcement significantly in the last year, including worksite enforcement. Ultimately, the agency has vowed to increase immigration enforcement by 400 percent over 2017 levels.

Additionally, the federal government mandates certain federal contractors to use E-Verify and approximately 21 states and a number of localities that require the use of either E-Verify or a specified alternative for some or all employers. While Congress continues to reauthorize the E-Verify program annually there are also bills in both the House of Representatives and Senate that have been introduced to make E-Verify a mandatory national electronic employment verification system for all employers. On October 25, the House Judiciary Committee passed the Legal Workforce Act (HR 3711) which would mandate E-Verify nationwide for all employers. President Trump and Congress are also pursuing DACA solutions that could include an E‑Verify requirement. President Trump may also pursue executive action aimed at expanding and incentivizing employers' use of E-Verify. Absent congressional action, additional states and localities could enact measures to require E-Verify as part of the employment verification process.

On the state front, California Governor Jerry Brown has signed the Immigrant Worker Protection Act (AB 450) into law. The intent of the law is to prevent federal immigration enforcement action at a worksite from violating the due process, labor and privacy rights of employees. However, certain provisions could create confusion for employers trying to comply with both federal and state law, including restrictions on employers from allowing Immigration Customs Enforcement (ICE) agents to access a workplace without a warrant (which could require multiple employees at the employers' place of work to know federal law regarding what ICE agents may access) and requirements for notice of immigration enforcement actions to employees within 72 hours. The federal Department of Justice has suedthe state and is seeking a temporary injunction on this and other state immigration laws.

International Labor Recruitment

In an attempt to stop human trafficking, various proposals have been advanced at the international, federal and state levels to regulate international labor recruitment. In some cases, voluntary guidelines have been established to encourage employers to utilize only certified recruiters, while in other cases, such as with the United Kingdom's Modern Slavery Act, the U.S. Federal Acquisition Regulations and the state of California's SB 477 passed in 2014, governments are requiring employers to ensure there is no abuse of foreign labor within their supply chains.

Outlook:

Increasing public awareness of human trafficking is putting pressure on governments to act. They, in turn, are looking to employers to help monitor and protect against labor abuses. As global competition for talent accelerates, employers will need to stay on top of this rapidly evolving area of the law.

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